Pecoraro v. City of Buffalo
| Decision Date | 22 February 1982 |
| Parties | Thomas PECORARO, d/b/a Silver Vending Company; Voelker's Bowling, Inc., Plaintiffs, v. CITY OF BUFFALO, Buffalo Police Department James B. Cunningham, Commissioner of Police for the City of Buffalo Herbert R. Johnson, Commissioner of Inspections and Licenses for the City of Buffalo, Frank J. Hahn, Director of Licenses and Permits for the City of Buffalo, Delmar L. Mitchell, George Arthur, Herbert C. Bellamy, Eugene M. Fahey, Arthur Gospodarski, James P. Keane, Scott W. Gehl, William L. Marcy, Jr., James W. Pitts, Daniel T. Quider, Elizabeth Sole, Richard F. Okoniewski, Gerald J. Whalen, Norman M. Bakos, and David A. Collins, Councilman, City of Buffalo, Common Council, Defendants. Eric JOSEPH, doing business under the Style and Assumed Name of Westworld, Plaintiff, v. Matthew M. BAUDO, As Commissioner of the Department of Inspections and Licenses of the City of Buffalo, City of Buffalo, New York, Defendants. |
| Court | New York Supreme Court |
Plaintiffs request this Court for a judgment pursuant to Article 30 of the Civil Practice Law and Rules declaring certain ordinances of the City of Buffalo unconstitutional on their face and as applied. Specifically, Chapter VII, § 27(9) governing Amusement Arcades. After a hearing the Court granted plaintiffs a preliminary injunction enjoining the defendants from taking any action to enforce said ordinances against the plaintiffs pending a final determination of this matter.
In addressing this matter the Court relies on the principles set forth by the New York Court of Appeals in Lighthouse Shores v. Islip, 41 N.Y.2d 7, 11-12, 390 N.Y.S.2d 827, 359 N.E.2d 337:
"The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality. The ordinance may not be arbitrary. It must be reasonably related to some manifest evil which, however, need only be reasonably apprehended. It is also presumed that the legislative body has investigated and found the existence of a situation showing or indicating the need for or desirability of the ordinance, and, if any state of facts known or to be assumed, justifies the disputed measure, this court's power of inquiry ends. Thus, as to reasonableness, plaintiffs in order to succeed have the burden of showing that "no reasonable basis at all" existed for the challenged portions of the ordinance. (See Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40 I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269 Wiggins v. Town of Somers, 4 N.Y.2d 215, 218-219 Defiance Milk Prods. Co. v. DuMond, 309 N.Y. 537, 541 See also Goldblatt v. Town of Hempstead v. Exxon, 53 N.Y.2d 747, 749 Albert Simon, Inc. v. Myerson, 36 N.Y.2d 300, 303 [367 N.Y.S.2d 755, 327 N.E.2d 801].
A review of plaintiffs' papers reveals five basic issues requiring determination.
First, is Chapter VII § 27(a) defining "amusement arcade" as a building or place which provides entertainment by means of coin-controlled amusement devices and which contains four (4) or more such devices an arbitrary or capricious definition, lacking a rational basis and violative of the equal protection rights of plaintiffs? The Court does not believe so.
If as counsel for respondent contends part of the intent of the legislation was to discourage truancy and assuming coin-controlled amusement devices are more participatory in nature than spectator oriented a decision that only those places having four or more machines needed regulation can not be classified as unreasonable on its face. The fact that places having three or fewer coin-operated amusement devices are not subject to the regulation does not in this Court's opinion raise an equal protection problem.
Plaintiffs also assert an equal protection argument claiming other forms of "amusement" are not identically or similarly regulated. Again, the Court is not persuaded. The United States Supreme Court has frequently upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it (Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125; Williamson v. Lee Optical, 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563.)
The second problem raised involves Chapter VII § 27(9)(h). This section provides "no person under the age of sixteen (16) years shall be permitted in an amusement arcade during the school hours on any weekday that the Buffalo public schools are in session."
Plaintiffs contend this section bears no rational relation to any legitimate public purpose (i.e. promotion of the public safety, health or welfare). Plaintiffs argue since nothing prevents those under sixteen from playing a coin-operated amusement device in a place having less than four machines during public school hours and nothing prohibits a private school student under sixteen from being in an "amusement arcade" on a day when his school is in session but the Buffalo public schools are not, the legislation has no rational purpose. Again, the Court disagrees. Few laws are capable of being drawn with such exactitude as to cover every situation; under-inclusive classifications have been accepted when based on a rational reason.
Here counsel for respondents contend that if the language was otherwise "amusement arcade" operators would have to determine where a child goes to school and then whether or not that school is open. A far more difficult task than checking with the Buffalo Public School system calendar or central office.
Plaintiffs also allege this provision infringes the First Amendment Free Speech or Freedom of Association rights of individuals under sixteen. Accepting plaintiffs allegation where there is an invasion of protected freedoms the power of the State to control the conduct of children reaches beyond the scope of its authority over adults (Ginsberg v. State of New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195; Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645; Erznoznik v. City of Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125). Where the regulation is relatively narrow and well-defined and serves a significant state of public interest the infringement should be tolerated.
The third provision challenged by plaintiffs is Chapter VII § 27(9)(b) which provides "no coin-controlled amusement device located in an amusement arcade shall be operated or used between the hours of 11:00 P.M. and 10:00 A.M.
Inasmuch, as the only purpose of the legislation advanced by defendant counsel was the curtailment of truancy plaintiffs correctly contend that there appears no rational relationship between the language of this provision and the asserted purpose. There are no legislative findings or history accompanying the enactment to suggest any other legitimate concerns. Nor can the Court on its own perceive any manifest evil that is reduced or controlled by the terms of this provision.
The fourth area of concern is the language of Chapter VII § 27(9)(d) which deals with the...
To continue reading
Request your trial
-
Stephanie L. v. Benjamin L.
...and will be defined and serves a significant state or public interest the infringement should be tolerated" (Pecoraro v. City of Buffalo, 112 Misc.2d 985, 988, 447 N.Y.S.2d 842). Wife's argument here is that "the best interest of the child" is a compelling state interest that permits a narr......
-
Melron Amusement Corp. v. Town of Mamaroneck in Westchester County
...459 N.Y.S.2d 220, affd. 95 A.D.2d 724, 464 N.Y.S.2d 132, affd. 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988; Pecoraro v. City of Buffalo, 112 Misc.2d 985, 447 N.Y.S.2d 842; see, also, America's Best Family Showplace Corp. v. City of New York, Dept. of Bldgs., 536 F.Supp. 170; cf. Aladdin......